VIDEOS: Diar gets life without parole for son's death

Nicole Diar listens to visiting Common Pleas Judge Judith Cross during the hearing concerning her re-sentencing for the 2003 murder of her son, 4-year-old Jacob Diar, on Thursday at the Lorain County Justice Center in Elyria. MORNING JOURNAL/NATE PARSONS

Nicole Diar's parents Marilyn Diar, left and Edward Diar talk with defense attourney Grey Meyers, right, as the three judge panel deliberates during the re-sentencing of Nicole Diar for the 2003 aggravated murder of her son, 4-year-old Jacob Diar on on Thursday at the Lorain County Justice Center in Elyria. MORNING JOURNAL/NATE PARSONS

ELYRIA -- Three judges took roughly an hour to decide yesterday that Nicole Diar will serve life in prison without parole for the 2003 murder of her son. She could have gotten the death penalty.

Assistant Lorain County Prosecutor Tony Cillo told the three-judge panel, consisting of visiting Judge Judith Cross and Lorain County Common Pleas Court judges Christopher Rothgery and Raymond Ewers, that Diar agreed to life in prison in exchange for dropping the death penalty.

This was Diar's second go around for sentencing for the aggravated murder of her son, 4-year-old Jacob Diar. She was sentenced to death in November 2005 by lethal injection, but in December 2008, the Ohio Supreme Court upheld her conviction, but vacated the death penalty due to incomplete jury instructions.

Diar said "yes" when Cross asked her if she understood the panel could look at the evidence and reject the plea recommendation.

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When the judges came back from deliberations, Cross told Diar she would be sentenced to life without parole as opposed to the death penalty. Diar was led out of the courtroom in uniform and handcuffs and taken to Lorain County Jail. She will serve her time at Marysville Correctional Institute.

Defense attorney Kreig Brusnahan said he was not surprised by the sentence given extensive talks between the defense and prosecution.

"It's a difficult day for Ms. Diar and for her family, but given the choices that we had, life without parole is certainly a better option than facing the possibility of the death sentence being imposed a second time."

Lorain County Prosecutor Dennis Will, who was present during the hearing, said he was also not surprised when the judges took the recommendation.

"I wasn't surprised because it was a sentencing agreement we submitted to the judges for their approval and they obviously approved it," Will said.

Brusnahan said there were several factors both the prosecution and the defense had to deal with and it was easier dealing with these factors before judges rather than a jury.

"You don't know what a jury is going to do, you know they could have come back with an even lesser than life without parole, the compromise was life without parole and we felt as a defense team that was the best option for her at this time," Brusnahan said.

Will said if they went before a jury, they would not be able to present all the information they needed to due to defense stipulations.

"We would have had to seat a new panel who were not aware of all the evidence used during the trial, so we would have had to start over and address those issues. It would have been a different situation procedurally for us to deal with, so we chose to take this course of action ... This does not mean we have changed our position. It is simply a matter of changing an outcome where we had assurance of the highest penalty."

Diar will be placed in general population at the prison, Brusnahan said.

"She's not in virtual solitary confinement as she would have been on death row. With the fact that she's in general prison population, she at least has the opportunity to interact with other inmates and it gives her a much better opportunity than she would have on death row," he said.

Her family, who Brusnahan has been "very supportive of her throughout this entire process," declined comment.

Jacob's charred body was found by firefighters inside Diar's West 10th Street, Lorain, home following a fire on Aug. 27, 2003. Investigators found evidence gasoline was used as an accelerant to deliberately set the fire. A coroner's examination found Jacob died of "homicidal violence of an undetermined origin" before the fire started.

Diar told police she fled the house after waking up to find it full of smoke and flames. She tried to re-enter the burning house, but was driven back by heavy smoke. A medical examination, however, found that her lungs showed no sign of smoke inhalation and her hair and clothing contained no soot or other fire residue.

During the original trial, Diar had contended she was innocent in the death of her son. Brusnahan declined to comment on whether Diar still claims her innocence.